Spinney v. Freeman

De Courcy, J. When the parties entered on their second period of trading, on October 8, 1913, the plaintiff said to the defendant, “You must not let the old account increase, but must pay for your goods as you buy them.” From that time there were almost continuous transactions between the parties, the last purchase being on May 29, 1914. The trial judge has expressly found "that the defendant did pay for each bill of goods as bought or shortly thereafter and intended that his payments should be applied on said purchases and not on the purchases of the first period of trading and that the plaintiff intended likewise and so applied them.” At the time of the trial, when the amended declaration was allowed (April 7, 1916), it was discovered that the credits of the second period of trading exceeded the debits by seventy-five cents. The first running account ended on November 20, 1908, when . [358] there was a balance due the plaintiff; and the last credit thereon was on May 6, -1909. It was almost seven years later when the parties discovered the overpayment on the second account, which apparently was made by error and mistake. Assuming that the plaintiff had a right to retain this seventy-five cents, his application of it to the old account, already barred by the statute of limitations, would not renew that account. In order to take the debt out of the operation of the statute, such appropriation must be specifically made or directed by the debtor. Pond v. Williams, 1 Gray, 630. Wenz v. Wenz, 222 Mass. 314. Kennedy v. Drake, 225 Mass. 303, 308, and cases cited. It is urged by the plaintiff that the unintended overpayment may be considered as applied to the first account at the time when it was made, and the running of the statute thereby arrested. But a conclusive answer to this contention is, that whenever this was received by the plaintiff it was intentionally applied by him to the second account. Such too was the intention of the defendant, who had a right to direct the application of the payments made by him. Ramsay v. Warner, 97 Mass. 8. The plaintiff never attempted to alter that application; nor could he have done so except with the consent of the defendant. Plummer v. Erskine, 58 Maine, 59. Coon’s Appeal, 52 Conn. 186. Smith v. Wood, Saxton, 74. 30 Cyc. 1239, and cases cited. In view of the findings of fact made by the trial judge there was no error in denying the plaintiff’s first, second, seventh and eighth requests, and finding that the account sued on was barred by the statute of limitations, Order dismissing report affirmed.